public law term paper the characteristic of the state legal system

It is the fact that a norms try to regulate relationships of group member is inadequate to characterize a norm as juridical or legal.. Legal norms actually are created by a legal system,

UNIVERSITY OF MESSINA

POLITICAL STUDIES AND INTERNATIONAL RELATIONS RKEKKKAKAKKKAKKKKAKAK

PUBLIC LAW TERM PAPER

THE CHARACTERISTIC OF THE STATE LEGAL SYSTEM

Student: Linh Lai Thao Quynh

Nationality: Vietnam

D.O.B: 01/09/2001

Instructor: Prof A Morelli

I Legal and Non-legal Norms: Structure and Relationship 1

II The State: Constitutive Elements and Brief Historical Outline 2 1 Constitutive EVCMents ccc ccc ccc eee ee ee ee ence cen EE CLE CLE EECA CLE EE ELE ELE CELE ELE ERE DEE teenie tenet 2 PMIUC n2 66G nnốố 3

III Values and Principles 5

V Citizenship 8 VI Territory 9

CHARACTERISTICS OF THE STATE

1 Legal and Non-legal Norms: Structure and Relationship

Several norms regulate bonding among participants of a social group, however, only some of which are able to be appropriately classified as juridical or legal in nature It is the fact that a norms try to regulate relationships of group member is inadequate to characterize a norm as juridical or legal

Legal norms actually are created by a legal system, which address a requisite, characteristic of

current liberal legal systems, accordingly the positive nature of the norm is also defined Thus, legal norms are created by the government or legal system

Legal norms must have two distinguishing features:

a Effectiveness: this mentions a feature which is connected with legal system as a whole and

single norms In term of systems as a whole, the notion of effectiveness demonstrates the

capacity of a legal system to execute binding rules or norms on members A legal system can be thought compulsory despite the fact that individuals may violate single norms occasionally The requisite of effectiveness is concerned with legitimacy, and it is relatively significant to the legal system's individual norms According to Kelsen's standpoint, the effectiveness of a legal system is a requisite to be valid or legally enacted Legal norms stay valid provided that the legal system where they originate from remains effective

b Force and effective: Effectiveness is the capacity of a norms to create its legal effect, or enforces legal responsibility on members in the system According to Kelsenian theory, the

validity of legal systems based on their effectiveness The capability to abstractly transform

in a legal system must be essentially together with an adherence or respect of it by the members in the system The validity of law bases on having been legally created by a valid legal system Consequently, effectiveness results in the legitimacy of legal system, which is an essential condition for the legitimacy of legal norms including the system As an

alternative, the ineffectiveness of an individual legal norm does not affect the legitimacy of general legal system Hence, it is essential that a legal system characterize which sources generate or have legal effect At first, this power is in the Constitution, is at the top of the hierarchy of sources of law The Constitution is the principle of legitimacy and validity of the sources that are hierarchically dependent on it The Italian legal system presents for a system of restricted and identified sources, where sources provided concerning to the construction of

law

The classification of legal sources basically meet the requirement of formality if they fulfill the requirements Firstly, it is competent authority, the super source classifies the organ within the legal

system that has authority to enact laws Second, nomen turis is the sources of law establish a closed

system and the last is the legislative procedure The Constitution also regulates the procedures needed to create normative law, disrespect such procedures is a reason to the fault in the legitimacy

of law

Two requisites for legal norms classified by classical legal doctrine are generality (the prospect the legal norm applies) and abstractness (the probability of the legal norm applying to an unlimited number of situations)

1L The State: Constitutive Elements and Brief Historical Outline Tú Constitutive Elements

The state legal systems aims at pursuing common purpose or ends, which can be differentiated from the others as it is not limited to the accomplishment of initial objectives but rather than legally control any parts of social human life Using the apparatus of state, its desire is to achieve those goals Moreover, an original state can be separated from derivative entities While non-derived

entity pursue general object, unoriginal entities are depicted by a hierarchical dependence for validity on a higher legal system, which provides them power

2 Brief Historical Outline

The notion of legal systems general ends originates from the Greek poleis in the 5th century, which has the same range of goals like the modern state Instead, the extent of community was extraordinarily different, since the poleis decreased and limited elements of a city-state

Roman civitas and the res publica are similarly defined as a general-purpose legal systems, the latter of which access to the range of contemporary states, as well as the medieval imperium and regnum In Europe, or in the German-speaking world particularly, the community of law were Reich and Land are defined by this terms The term "State", which has an extremely ancient etymological

derivation, was indicated in Ancient Rome and also used to characterize the Communes of

Renaissance Italy Accordingly, it is unfeasible to deliver the idea of community governed by an effective legal system Hence, the generality of goals or ends may be the precursor of the modern state model However, the process of change into the modern state model is truly long and complex from 14th century to 17th century The organization of the feudal system in the Middle age was described by a high degree of power distribution The dominance of the Sovereign was practiced on

numerous hostilities, each one controlled sequentially by a vassal Relation between feudal master

and vassal was the title, which validated the exercise of power and also the indirect power over the subjects- those who lived in the feud

Another feature was the simultaneous overlapping of several legal systems, which consisted of the

laws of the Sovereign, the merchant common law, canon or ecclesiastic law, and others The reason of it is the shattering of a particular social class, which did not allow the Head of state to achieve a

monopoly over legal force.

In parallel with the shortage in absolute political power was the substitute notion of the unity of the Res Publica Christiana under the support of both the Empire and the Church Hence, a dissimilar opinion to the person who not only was a part of territorially disgregated moral community but also did not follow the same laws While Niccolo Machiavelli- the Italian political philosopher stated that territorial and sovereign are the requisite, Jean Bodin- the French jurist discussed that sovereignty was the distinctive characteristic of the State

Hence, the primary principles of improvement are: the national geographical location and the legal system's acquisition These improvements lessen the fragmented situation, leads to less coexistence of diverse legal systems, which are won by a different legal state Each nation has own territorial area of authority An unifying part binding the individuals is the sole presence of a political power

that the residents in that territory obey After several, we can observe the initial positive law

experiences representing the above principles The first nation including England, France and Navarre declared their power with the Peace of Westphalia The increase in bureaucratic representing mostly in the administration of justice and finances is the distinctive feature of the period We are addressing organization which gradually release themselves from the direct domination of the Sovereign and turn into a more self-regulating association The idea of body of law that controls relation between subjects and authority is in the shortage in this period In spite of the argument in the attribution of this motto to the King of France, Louis XIV, it is still the model to the particular mean social ties and association were intended

We will see the growth in the modern model of state organization due to the advance in the form of state “Legal system having general ends and objectives exercising sovereign power over a specific territory, which the subjects or participants belonging to such system are necessarily subject and subordinated to (phy thudc vao)" is a very famous definition of Costantino Mortati, which can

conclude 3 features of State legal system They are: Sovereignty, Territory and People respectively.

CHARACTERISTICS OF THE STATE 1H Values and Principles

The terms "value" and "principle" had the same meaning, which are used interchangeably Nevertheless, two terms are different concepts Principles indicate the primary selections of a society's ethical or moral orderings The linchpins of the legal systems are principles and the factors which control the manufacture of positive norms Hence, principles are the "points of departure", since the legal systems shift to follow its desire The two notions are not similar but complementary Principles are the way to outline the path to reach a system's objective, which are its values

Principles are the method to realize target, because since they notify and affect the legal system,

society can take advantages of available tool to follow social equality

However, the change of basis principles is also controversial The text of a constitution often demand confrontation to passing legal fashions including a simple law The Constitution is the central fulcrum or forum where the rules are arranged hierarchically and gain legitimate recognition The construction of principles is "elastic", open to feasible various explanations which allow diverse readings of the same text, which let changes in norms replying to social changes Classifying principles and other norms is challenging Importantly, constitutions also consist of implicit rules, which are not distinguishable but can be indicated by general framework and design of legal system The constitutional interpreter's duty is to reckon by analogy principles The systematic explanation of Constitutions should not guide the scholar to a forced interpretation of general constitutional next

IV People

In the historical development of diverse philosophic-political notion, the concurrence that "the people" are the totality of "those being governed" originated from 15th to 16th centuries, when the first nation confirmed themselves with the rise of English, Spanish and French monarchies.

Agreement that people are the holder of sovereignty appeared in the 17th century, which was maintained by the thinkers who were part of natural law and contractualist movements

Historical social advancement led humankind to discard its natural state to mature form of social formation of the civil state According to Thomas Hobbes's standpoint, the pactum subjectionis includes people freely choose to submit to the absolute power of Sovereign John Locke's view theorized that purpose of social compact is ensuring the inviolate human rights

French constitutionalism created incentives for the advance of the notion" the people" and "popular sovereignty" examining the conceptual restriction and relation of two notions, those of" population" and nation This concept classifies a momentary category of those people, characterized as the amount of residents in a country in a given period of time

The notion of nation has more vague limit, bases on the ebb and flow of interpretation attempting to define it Similar to such a point, but its original pragmatism is no longer and it enhanced by more "spiritual" implications, was the standpoint of State as a "daily general agreement" This attaches to the mere equivalence with the notion of" population", a further notion: that of day-to-day expression of the agreement of a legal system's member to ensure in presence the social ties that maintain or merge them This theory was proposed by Ernest Renan

The theory of the people such as constitutive element of the state This idea characterizes "people" as the element of the state, going with territory and sovereignty Although it cannot be provided with the state without material presence of people, it is inadequate to cover all the factors of the concept The issue of identity or the notion of "Nation" and the notion of "people" is relatively significant, or at least relating to the Italian legal system The notion of "Nation" cannot be found in a place within the Italian constitutional frame, because the Constitution founds in Art] that "sovereignty belongs to the people" As concern to Italian experience, the remarkable is the doctrinal discussion which leads

to the construction of four individual theories concerning the nature and subject of the concepts of "people"

The theory of the people as the object of state sovereignty This notable view was confirmed by Hans Kelsen The concept people will be stated in the area where state sovereignty is applied People are the participants, who are in the control of the imperium of state authority and respect imposed norm This theory was criticized since the immigrant living the area of state are also be

forced to obey the rule In fact, Kelsen also desired to take into account that foreigners within the

concept of "population" Accordingly, contemplation on legal terms leads us to maintain the oppose against Kelsen's view

The theory of the people as subject of rights toward the state According to Georg Jellinek, these views is proved by "subjective public rights" This concept is attached to the historical growth of the notion of state and the services that the state crucially ensure to people in the system This modification happens at the beginning of the 20th century with the accomplishment of Welfare state and the resulting change in citizens "expectation vis-a-vis public authorities - There is a change to a

more proactive state, which furnishes those services with essential needs and a share in the profits created by civil society

The theory of the people as creator of the state’s will Art.1 Italian Constitution states that beside people have their citizenship, exercise right in the ways legitimately provided for The common exercise of sovereignty is stated by the capacity of taking part in the political deciding procedure, especially related to the election of representative bodies implementing legislative powers These bodies are granted powers in a temporal and conditional way The involvement of the determination

of the state is reviewed by the form status activae civitas, which indicates the idea that the resident is

an active giver to classifying will.

CHARACTERISTICS OF THE STATE V Citizenship

It is the condition that is tied to a given State, since the citizen obtains certain rights as well as

responsibilities, and obliged to respect certain duties The notion substitutes the idea of subject, typically absolute monarchies The ownership of citizenship constitutes by law a positive factor that State legal system adjusts depending on its own standard

Two criteria are used to distinguish citizens and foreigners "Ius sanguinis" refers to the case where legal system characterize citizenship as individuals whose parents are the citizens of the same state On the contrary, "the law of soil" is where a state bestows citizenship to the offsprings of foreigners who are born in the state Ius sanguinis has been priorized in the Italian legal system Material rules goverming gaining citizenship have been adjusted several times The notion applied in the legal system after Italy united, when the position of the Kingdom of Piedmont and Sardinia was adopted, inherited it following French constitutional tradition

The loss of citizenship for political grounds and generally racial segregation is banned by the constitution According to such principles, the amendment of family law and the law of 21 April 1983, no 123, permits the mixed marriages, which does not oblige women to surrender own citizenship, which allows the children to have their mother's citizenship The law dated on Sth February in 1992, no.91 later entirely and preemptively regulates the subject, abolishing all prior

valid sources of law Based on an inclusive source of law, the institute of dual citizenship certainly

occurs in the legal system The basis principle ensures that of ius sanguinis, while the notion relating to acquirement of citizenship goes together with ius soli and with ius conubii

From 1994, Italy, as the member of European Community, has acknowledged the presence of European citizenship It does not substitute national citizenship but completes it, ensuring the satisfaction of certain civil and political rights exercised in all member states Hence, the